VP 3-I-95460Board of Immigration Appeals Executive Office for Immigration Review U.S. Department of Justice
Decided by Central Office July 27, 1956
Preference quota status — Section 203 (a) (1) (A), Immigration and Nationality Act — Preparation of fine cakes and pastries for specialty bakery and supervision over the production thereof is a skilled occupation — Statute does not require that skill be superior to that possessed by most others in the occupation.
(1) An individual with more than 20 years’ experience in the bakery business, both as a craftsman and as a proprietor and manager, specializing in the production of Viennese type cookies, cakes, pastries, and fancy cakes for special occasions who will be employed in the United States as supervisor of the baking, production, and sales departments of a speciality bakery has established the “specialized experience” required for preference quota status under section 203 (a) (1) (A) of the Immigration and Nationality Act.
(2) Section 203 (a) (1) (A) of the act does not require that the skill of the beneficiary must be superior to that possessed by most others in the occupation. The law contemplates no more than that the beneficiary possess the skill necessary to perform the tasks of the skilled occupation.
BEFORE THE CENTRAL OFFICE
BEFORE THE CENTRAL OFFICE
Discussion: The petitioner is the sole owner of a specialty bakery which produces pies, pastry, and cookies. He seeks to qualify the beneficiary for first preference under section 203 (a) (1) (A) of the Immigration and Nationality Act. In his affidavit supporting the petition, he alleges that during the 1930’s he worked for the beneficiary who at that time was the owner of several baking establishments in Warsaw, Poland.
The beneficiary is a 57-year-old married male, a native of Poland and now a resident of Canada. He has submitted an affidavit in support of the petition showing that he began to work in his father’s bakery in 1916, and that he was employed as a director of a bakery business in Warsaw from 1926 to 1932, and that from 1933 to 1941 he operated his own bakery business. From 1930 to 1939 he employed the petitioner, and for the last 6 of those years as a foreman and manager of his cooky factory. During the war the beneficiary’s business was confiscated. In 1950 he moved to Israel and in 1951 to Montreal, Canada. From 1951 until 1954 he operated a pastry business in Canada,
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and since that time has been working for a candy manufacturer as a pastry maker and subsequently for a Montreal restaurant.
A number of documents support the petition. These include various letters and affidavits to the effect that the beneficiary has been engaged in the pastry business for many years, photographs of cakes decorated by the beneficiary, a letter from the Cake Bakers Union Local testifying that it cannot supply the type of employee desired by the petitioner, and a clearance from the United States Employment Service showing that they could not supply a baker at the rate of pay of $90 or more, depending upon experience, to supervise the operation of a bakeshop. The petition specifies that the beneficiary will supervise the baking, production, and sales departments of the business and that he will be paid $5,000 per annum to start, for a 6-day work week.
Counsel for the petitioner submitted the original of a certificate awarded by a trade guild in the City of Warsaw, Poland, certifying that the beneficiary has the right to employ the title of master in the pastry, pie, and confectionery making trade and that he was at that time the holder of a diploma granted him on the strength of an examination passed before the Masters’ Board of Examiners in the field of pastry, pie, and confectionery baking.
The petition was denied by the district director, and his decision affirmed on appeal by the Acting Regional Commissioner. The case is before the Assistant Commissioner, Examinations Division, by certification.
Denial of the petition is based on a finding that the beneficiary does not possess the “specialized experience” which section 203 (a) (1) (A) of the Immigration and Nationality Act contemplates. In so finding, the Acting Regional Commissioner held that to meet the statutory test of “specialized experience,” the experience must be more than ordinary, and that if it is no more than that common to many or most individuals in a given profession, it does not meet the requirement of the statute. We disagree with this holding.
The record shows that the beneficiary has had more than 20 years’ experience in the bakery business, both as a craftsman and as a proprietor and manager, specializing in the production of Vienna type cookies, cakes, pastries, and cakes for special occasions. He has been certified as a master in the pastry and pie trade, and the type of work for which his services are being sought requires many years of experience. The beneficiary is qualified to, and has taught the art of preparing fancy pastries and cakes. All other requirements of the law having been met, the question presented is whether the beneficiary possesses the required “specialized experience.”
The “specialized experience” which the statute contemplates is experience which an individual gains by actual performance of the
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tasks of a given trade, occupation, or profession, as a result of which the individual acquires skill and proficiency. The law contemplates, further, that this experience be in a skilled occupation, since the performance of the tasks of any calling over a period of time will vest experience in an individual. It was not intended that the performance of rudimentary work in a calling requiring no skill would qualify an individual as a person of “specialized experience” within the meaning of the statute.
The supporting evidence shows that the preparation of fine cakes and pastries of the type desired by the petitioner, and supervision over production thereof is a skilled occupation. The record also supports a finding that through years of experience the beneficiary is a skilled and proficient worker in that occupation. There is nothing in the statute, express or implied, which requires that, once the skill of the beneficiary to perform the work is established, there must also be a showing that his skill is superior to that possessed by most others in the occupation. The law contemplates no more than that the beneficiary possess the skill necessary for the performance of the tasks of the skilled occupation. To hold otherwise would disqualify from the benefits of section 203 (a) (1) (A) of the act the very persons for whom they were intended, and nullify the statute.
It is concluded that the beneficiary has “specialized experience” within the meaning of section 203 (a) (1) (A) of the act, and the petition should, therefore, be granted.
Order: It is ordered that the appeal from the order of the district director denying the petition be sustained.
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